Chhitanya and ors. Vs. State of Rajasthan - Court Judgment

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
	'args' => array(
		(int) 0 => '760609',
		(int) 1 => 'chhitanya-ors-vs-state-rajasthan'
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
	'args' => array(
		(int) 0 => '760609',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
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		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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$caseref = 'In Laxmi Singh v. State of Bihar<br>'
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'chhitanya-ors-vs-state-rajasthan'
$args = array(
	(int) 0 => '760609',
	(int) 1 => 'chhitanya-ors-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760609/chhitanya-ors-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Shiv Kumar Sharma, J.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'chhitanya-ors-vs-state-rajasthan'
$args = array(
	(int) 0 => '760609',
	(int) 1 => 'chhitanya-ors-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760609/chhitanya-ors-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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$args = array(
	(int) 0 => '760609',
	(int) 1 => 'chhitanya-ors-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760609/chhitanya-ors-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Atar Singh:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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$args = array(
	(int) 0 => '760609',
	(int) 1 => 'chhitanya-ors-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760609/chhitanya-ors-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Sectionb 302 IPC:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
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		(int) 0 => '760609',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'chhitanya-ors-vs-state-rajasthan'
$args = array(
	(int) 0 => '760609',
	(int) 1 => 'chhitanya-ors-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760609/chhitanya-ors-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'chhitanya-ors-vs-state-rajasthan'
$args = array(
	(int) 0 => '760609',
	(int) 1 => 'chhitanya-ors-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760609/chhitanya-ors-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
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		(int) 0 => '760609',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'chhitanya-ors-vs-state-rajasthan'
$args = array(
	(int) 0 => '760609',
	(int) 1 => 'chhitanya-ors-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760609/chhitanya-ors-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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	'casename_url' => 'chhitanya-ors-vs-state-rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$args = array(
	(int) 0 => '760609',
	(int) 1 => 'chhitanya-ors-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760609/chhitanya-ors-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Section 147 IPC:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '760609',
	(int) 1 => 'chhitanya-ors-vs-state-rajasthan'
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$url = 'https://sooperkanoon.com/case/amp/760609/chhitanya-ors-vs-state-rajasthan'
$ctype = ' High Court'
$caseref = 'In Laxmi Singh v. State of Bihar<br>'
$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer rigorous imprisonment for one year.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Section 148 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer rigorous imprisonment for one year.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Section 323 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer rigorous imprisonment for six months.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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include - APP/View/Case/amp.ctp, line 144
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Under Section 341 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer rigorous imprisonment for one month.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Jal Singh:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Section 302/149 IPC.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Section 307 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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include - APP/View/Case/amp.ctp, line 144
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Under Section 147 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer rigorous imprisonment for one year.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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include - APP/View/Case/amp.ctp, line 144
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Under Section 148 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer rigorous imprisonment for one year.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Section 323 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer rigorous imprisonment for six months.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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include - APP/View/Case/amp.ctp, line 144
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Under Section 341 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer rigorous imprisonment for one month.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Chhitariya and Mahaveer:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Section 302/149 IPC.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Section 307/149 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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include - APP/View/Case/amp.ctp, line 144
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Under Section 147 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Each to suffer rigorous imprisonment for one year.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Section 323 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Each to suffer rigorous imprisonment for six months.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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Under Section 341 IPC:

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Code Context
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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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2. C/o pain with diffused swelling Lt. index finger distal phalanx

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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3. C/o pain right side scapular region with tenderness.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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3. Abraded swelling Middle Phalanx Lt. index finger all over joint

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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4. Red contusion 2cm x 1cm Lt. temporal region.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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5. C/o pain with local tenderness Rt. knee.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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2. Abrasion with clot. middle phalanx Lt.middle finger.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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3. Diffuse swelling all over Rt. knee.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(iii) No blood or pellets were found at the place of incident.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(a) Cross case and non-explanation of injuries sustained by the accused.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(b) Delay in lodging FIR.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(c) Place of occurrence.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(d) Right of private defence.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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DELAY IN LODGING FIR:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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PLACE OF OCCURRENCE:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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RIGHT OF PRIVATE DEFENCE:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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24. As a result of the above discussion we dispose of the instant appeal in the following terms:

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
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(iii) Impugned judgment of learned trial Judge stands modified as indicated above.

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	'title_for_layout' => 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760609',
			'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
			'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
			'appellant' => 'Chhitanya and ors.',
			'authreffered' => '',
			'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
			'caseanalysis' => null,
			'casesref' => 'In Laxmi Singh v. State of Bihar;',
			'citingcases' => '',
			'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
			'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '2006-02-20',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
			'judgement' => '<p style="text-align: justify;">Shiv Kumar Sharma, J.</p><p style="text-align: justify;">1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p style="text-align: justify;">Atar Singh:</p><p style="text-align: justify;">Under Sectionb 302 IPC:</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Jal Singh:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 148 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer rigorous imprisonment for one month.</p><p style="text-align: justify;">Chhitariya and Mahaveer:</p><p style="text-align: justify;">Under Section 302/149 IPC.</p><p style="text-align: justify;">Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 307/149 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p style="text-align: justify;">Under Section 147 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for one year.</p><p style="text-align: justify;">Under Section 323 IPC:</p><p style="text-align: justify;">Each to suffer rigorous imprisonment for six months.</p><p style="text-align: justify;">Under Section 341 IPC:</p><p style="text-align: justify;">To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p style="text-align: justify;">2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p style="text-align: justify;">3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p style="text-align: justify;">4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p style="text-align: justify;">There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p style="text-align: justify;">In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p style="text-align: justify;">Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p style="text-align: justify;">1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p style="text-align: justify;">2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p style="text-align: justify;">3. C/o pain right side scapular region with tenderness.</p><p style="text-align: justify;">Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p style="text-align: justify;">1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p style="text-align: justify;">2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p style="text-align: justify;">3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p style="text-align: justify;">4. Red contusion 2cm x 1cm Lt. temporal region.</p><p style="text-align: justify;">5. C/o pain with local tenderness Rt. knee.</p><p style="text-align: justify;">Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p style="text-align: justify;">2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p style="text-align: justify;">Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p style="text-align: justify;">1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p style="text-align: justify;">2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p style="text-align: justify;">Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p style="text-align: justify;">1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p style="text-align: justify;">Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p style="text-align: justify;">1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p style="text-align: justify;">2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p style="text-align: justify;">3. Diffuse swelling all over Rt. knee.</p><p style="text-align: justify;">5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p style="text-align: justify;">6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p style="text-align: justify;">(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p style="text-align: justify;">(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p style="text-align: justify;">(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p style="text-align: justify;">(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p style="text-align: justify;">(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p style="text-align: justify;">7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p style="text-align: justify;">there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p style="text-align: justify;">8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p style="text-align: justify;">In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p style="text-align: justify;">9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p style="text-align: justify;">10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p style="text-align: justify;">But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p style="text-align: justify;">11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p style="text-align: justify;">12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p style="text-align: justify;">13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p style="text-align: justify;">A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p style="text-align: justify;">14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p style="text-align: justify;">That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p style="text-align: justify;">15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p style="text-align: justify;">(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p style="text-align: justify;">(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p style="text-align: justify;">(iii) No blood or pellets were found at the place of incident.</p><p style="text-align: justify;">(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p style="text-align: justify;">(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p style="text-align: justify;">(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p style="text-align: justify;">(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p style="text-align: justify;">16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p style="text-align: justify;">(a) Cross case and non-explanation of injuries sustained by the accused.</p><p style="text-align: justify;">(b) Delay in lodging FIR.</p><p style="text-align: justify;">(c) Place of occurrence.</p><p style="text-align: justify;">(d) Right of private defence.</p><p style="text-align: justify;">CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p style="text-align: justify;">17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p style="text-align: justify;">(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p style="text-align: justify;">(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p style="text-align: justify;">(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p style="text-align: justify;">(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p style="text-align: justify;">(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p style="text-align: justify;">18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p style="text-align: justify;">(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p style="text-align: justify;">(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p style="text-align: justify;">(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p style="text-align: justify;">However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p style="text-align: justify;">19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p style="text-align: justify;">DELAY IN LODGING FIR:</p><p style="text-align: justify;">20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p style="text-align: justify;">PLACE OF OCCURRENCE:</p><p style="text-align: justify;">21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p style="text-align: justify;">RIGHT OF PRIVATE DEFENCE:</p><p style="text-align: justify;">22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p style="text-align: justify;">23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p style="text-align: justify;">24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p style="text-align: justify;">(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p style="text-align: justify;">(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p style="text-align: justify;">(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
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			'respondent' => 'State of Rajasthan',
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$title_for_layout = 'Chhitanya and ors Vs State of Rajasthan - Citation 760609 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760609',
		'acts' => 'Indian Penal Code (IPC) - Sections 24, 147, 148, 149, 302, 304, 307, 323, 324, 325, 326, 341 and 452; Code of Criminal Procedure (CrPC) - Sections 162 and 313',
		'appealno' => 'D.B. Criminal Appeal No. 1617 of 2002',
		'appellant' => 'Chhitanya and ors.',
		'authreffered' => '',
		'casename' => 'Chhitanya and ors. Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales. (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
		'caseanalysis' => null,
		'casesref' => 'In Laxmi Singh v. State of Bihar;',
		'citingcases' => '',
		'counselplain' => ' D.G. Chaturvedi and; N.A. Naqvi, Advs.',
		'counseldef' => ' R.P. Kuldeep, Public Prosecutor',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '2006-02-20',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Shiv Kumar Sharma and; R.S. Chauhan, JJ.',
		'judgement' => '<p>Shiv Kumar Sharma, J.</p><p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:</p><p>Atar Singh:</p><p>Under Sectionb 302 IPC:</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Jal Singh:</p><p>Under Section 302/149 IPC.</p><p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307 IPC:</p><p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 148 IPC:</p><p>To suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>To suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer rigorous imprisonment for one month.</p><p>Chhitariya and Mahaveer:</p><p>Under Section 302/149 IPC.</p><p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 307/149 IPC:</p><p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.</p><p>Under Section 147 IPC:</p><p>Each to suffer rigorous imprisonment for one year.</p><p>Under Section 323 IPC:</p><p>Each to suffer rigorous imprisonment for six months.</p><p>Under Section 341 IPC:</p><p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.</p><p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.</p><p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.</p><p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:</p><p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.</p><p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.</p><p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:</p><p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.</p><p>2. C/o pain with diffused swelling Lt. index finger distal phalanx</p><p>3. C/o pain right side scapular region with tenderness.</p><p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:</p><p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely</p><p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3</p><p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint</p><p>4. Red contusion 2cm x 1cm Lt. temporal region.</p><p>5. C/o pain with local tenderness Rt. knee.</p><p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:</p><p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.</p><p>2. Abrasion with clot. middle phalanx Lt.middle finger.</p><p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:</p><p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line </p><p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally</p><p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:</p><p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.</p><p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:</p><p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique</p><p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.</p><p>3. Diffuse swelling all over Rt. knee.</p><p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).</p><p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:</p><p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.</p><p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.</p><p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.</p><p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.</p><p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.</p><p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:</p><p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.</p><p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:</p><p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.</p><p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.</p><p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:</p><p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.</p><p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.</p><p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.</p><p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:</p><p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.</p><p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:</p><p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.</p><p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:</p><p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.</p><p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.</p><p>(iii) No blood or pellets were found at the place of incident.</p><p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.</p><p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.</p><p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.</p><p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.</p><p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:</p><p>(a) Cross case and non-explanation of injuries sustained by the accused.</p><p>(b) Delay in lodging FIR.</p><p>(c) Place of occurrence.</p><p>(d) Right of private defence.</p><p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:</p><p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:</p><p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.</p><p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.</p><p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.</p><p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.</p><p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.</p><p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:</p><p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;</p><p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;</p><p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....</p><p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.</p><p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.</p><p>DELAY IN LODGING FIR:</p><p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.</p><p>PLACE OF OCCURRENCE:</p><p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.</p><p>RIGHT OF PRIVATE DEFENCE:</p><p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.</p><p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.</p><p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:</p><p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.</p><p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.</p><p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'RLW2006(3)Raj2190; 2006(3)WLC128',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$content = array(
	(int) 0 => '<p>Shiv Kumar Sharma, J.',
	(int) 1 => '<p>1. Four appellants, along with co-accused Prakashi who died during trial, were tried by the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 195/2001. Learned Judge vide judgment dated November 23, 2002 convicted and sentenced the appellants as under:',
	(int) 2 => '<p>Atar Singh:',
	(int) 3 => '<p>Under Sectionb 302 IPC:',
	(int) 4 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 5 => '<p>Under Section 307 IPC:',
	(int) 6 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 7 => '<p>Under Section 147 IPC:',
	(int) 8 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 9 => '<p>Under Section 148 IPC:',
	(int) 10 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 11 => '<p>Under Section 323 IPC:',
	(int) 12 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 13 => '<p>Under Section 341 IPC:',
	(int) 14 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 15 => '<p>Jal Singh:',
	(int) 16 => '<p>Under Section 302/149 IPC.',
	(int) 17 => '<p>To suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 18 => '<p>Under Section 307 IPC:',
	(int) 19 => '<p>To suffer rigorous imprisonment for five years and fine of Rs. 500/-in default to further suffer rigorous imprisonment for two months.',
	(int) 20 => '<p>Under Section 147 IPC:',
	(int) 21 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 22 => '<p>Under Section 148 IPC:',
	(int) 23 => '<p>To suffer rigorous imprisonment for one year.',
	(int) 24 => '<p>Under Section 323 IPC:',
	(int) 25 => '<p>To suffer rigorous imprisonment for six months.',
	(int) 26 => '<p>Under Section 341 IPC:',
	(int) 27 => '<p>To suffer rigorous imprisonment for one month.',
	(int) 28 => '<p>Chhitariya and Mahaveer:',
	(int) 29 => '<p>Under Section 302/149 IPC.',
	(int) 30 => '<p>Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 31 => '<p>Under Section 307/149 IPC:',
	(int) 32 => '<p>Each to suffer rigorous imprisonment for five years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for two months.',
	(int) 33 => '<p>Under Section 147 IPC:',
	(int) 34 => '<p>Each to suffer rigorous imprisonment for one year.',
	(int) 35 => '<p>Under Section 323 IPC:',
	(int) 36 => '<p>Each to suffer rigorous imprisonment for six months.',
	(int) 37 => '<p>Under Section 341 IPC:',
	(int) 38 => '<p>To suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently.',
	(int) 39 => '<p>2. As per the prosecution story on April 19, 1997 at 1.30 PM the informant Nivori (PW-2) submitted a written report (Ex. P/1) at Police Station Roopwas stating therein that in the preceding night around 8-9 PM while Banwari, his wife Angoori (now deceased), Ranjeet and Bhagwan Dei were coming to the filed they were belaboured by Chhitariya, Atar Singh, Jal Singh and Prakashi on the road. On being exhorted by Prakashi to kill the enemies, Atar Singh opened fire with katta, pellets of which hit the neck of Angoori, who died on the spot, fire opened by Jal Singh hit the left shoulder of Ranjeet. Atar Singh's second fire hit he right hand of Banwari, who also sustained lathi blow inflicted by Mahaveer on his head. Hearing hue and cry when the informant, Kalua, Bhagwan Singh, Mst. Kallo, Udai Singh and mst. Kaila intervened, they were also beaten up. On that report case under Sections 147, 148, 149, 323, 307, 307 and 341 IPC was registered and investigation commenced and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur. Charges under Sections 147, 148, 323, 341, 307, 307/149, 302 and 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness was however examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.',
	(int) 40 => '<p>3. We have given our anxious consideration to he rival submissions and with the assistance of the learned Counsel we have gone through the evidence on record.',
	(int) 41 => '<p>4. As per post-mortem report (Ex.P-36) deceased Angoori received following ante-mortem injuries:',
	(int) 42 => '<p>There are multiple punctured lacerated wounds of size 3cm to 25cm on chest wall of both sides chest x 3cm to 2cm anteriorly going through inter costal space penetrating into the lung parenchyma both sides and multiple punctured wounds in both sides lungs anteriorly middle & lower lobes with clotted blood in chest cavity about 1-1/2 liter of blood-present and these wounds corresponds with the injuries of chest externally V-flow wounds are upto the depth of intercostal spaces six pallets recovered from parenchyma (lung tissues) and sealed.',
	(int) 43 => '<p>In the opinion of Dr. Baney Singh (PW-24) cause of death was hemorrhagic shock as a result of laceration and punctured multiple wounds in both sides lungs, liver and stomach leading to excessive bleeding.',
	(int) 44 => '<p>Kallo (PW-1) vide injury report (Ex. P-30) received following injuries:',
	(int) 45 => '<p>1. Red Contusion 2cm x 1.5 Rt. knee with Abrasion 2 cm x 1.5 cm Patella.',
	(int) 46 => '<p>2. C/o pain with diffused swelling Lt. index finger distal phalanx',
	(int) 47 => '<p>3. C/o pain right side scapular region with tenderness.',
	(int) 48 => '<p>Mohan Singh (PW-3) vide injury report (Ex. P-31) received following injuries:',
	(int) 49 => '<p>1. Red contusion 10cm x 3cm Rt. side back mid 1/3 transversely',
	(int) 50 => '<p>2. Abrasion with clot. 2cm x 1cm Lt. side back mid 1/3',
	(int) 51 => '<p>3. Abraded swelling Middle Phalanx Lt. index finger all over joint',
	(int) 52 => '<p>4. Red contusion 2cm x 1cm Lt. temporal region.',
	(int) 53 => '<p>5. C/o pain with local tenderness Rt. knee.',
	(int) 54 => '<p>Smt. Kaila (PW-12) vide injury report (Ex. P-32) received following injuries:',
	(int) 55 => '<p>1. Lacerated wound 1cm x 1/2cm x muscle deep parietal region adjacent to mid line.',
	(int) 56 => '<p>2. Abrasion with clot. middle phalanx Lt.middle finger.',
	(int) 57 => '<p>Udai singh (PW-4) vide injury report (Ex. P-33) received following injuries:',
	(int) 58 => '<p>1. Lacerated wound 1/2cm x 1/2cm Lt. parietal region near mid line ',
	(int) 59 => '<p>2. Red contusion 4cm x 2cm Lt. forearm mid 1/3 dorsally',
	(int) 60 => '<p>Ranjeet (PW-7) vide injury report (Ex. P-34) received following injuries:',
	(int) 61 => '<p>1. Lacerated punctured wounds of size 0.25 to 3 X 0.3 to 0.25 cm x Muscle to x-ray deep. With collar of contusion edges & margin inverted with clotted blood at places & bleeding at few wounds present scattered at two Lt.shoulder anteriorly (ii) one Lt. upper Arm upper 1/3 anteriorly (iii) one on Lt. side face (iv) Multiple about eight on Lt. side chest anteriorly.',
	(int) 62 => '<p>Banwari (PW-5) vide injury report (Ex. P-35) received following injuries:',
	(int) 63 => '<p>1. Lacerated wounds 4cm x 1 cm x Muscle deep Lt. Parietal lower 1/3 oblique',
	(int) 64 => '<p>2. Lacerated punctured wounds with clot. With collar of contusion no burning and blackening & Tattooing Edges and margins inverted.',
	(int) 65 => '<p>3. Diffuse swelling all over Rt. knee.',
	(int) 66 => '<p>5. The prosecution case centers round the testimony of Banwari (PW-5), Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1). Banwari (PW-5), husband of deceased Angoori, in his deposition stated that around 8-9 PM while he, Ranjeet, Angoori and Bhagwan Dei were going to the field, as soon as they scaled 'Bandha' (dam) Atar Singh, Jal Singh, Mahaveer, Chhitariya and Prakashi, who were hiding behind the bushes came over there Prakashi said that enemies had arrived and exhorted to kill the enemies. Immediately thereafter Atar Singh opened fire at Angoori which hit on her chin, neck, breast and abdomen. Thereafter Jal singh opened fire with katta that hit Ranjeet. Atar Singh opened second fire, which hit on his (Banwari) right hand. Mahaveer then caused lathi blow, as a result of which he fell down. Thereafter Chittariya inflicted lathi blow on his right knee. Udai Singh, Kalua Ram, Bhagwan Singh, Nivori, Kallo and Kaila then intervened they were also beaten up. Angoori died on the spot. Testimony of Banwari gets corroboration from the evidence of Ranjeet (PW-7), Bhagwan Dei (PW-6), Udai Singh (PW-4), Kaila (PW-12), Mohan Singh (PW-3) and Kallo (PW-1).',
	(int) 67 => '<p>6. Learned Counsel for the appellants took us through the entire material on record and urged that the alleged incident did not occur at the place shown in the site plan. In fact the complainant party itself was the aggressor and it came to the house of appellants and attacked them. Since the prosecution has withheld origin and genesis of the occurrence the prosecution case deserves to be thrown out. Details of submissions canvassed by the learned Counsel are as under:',
	(int) 68 => '<p>(i) Cross FIR (Ex. D-9A) was lodged at Police Station Roopwas at 1.35 AM on April 19, 1997 in respect of the incident occurred on April 18, 1997 at 8 PM. The case was registered under Sections 147, 452 and 323 IPC. The place of occurrence as per site plan (Ex. D-10A) was the house of appellants where blood smeared soil got seized by the police. After investigation Sections 323, 24, 326 and 325 IPC were also added. Appellant Atar Singh sustained as many as 6 injuries vide injury report Ex. D13A) and as per Ex. D-14A there were chip fractures lower end of first promixal phalanx and 4th and 5th ribs. Appellant Jal Singh sustained as many as 6 injuries vide injury report Ex. D-15A, and as per Ex. D-16A there were fractures of distill end of proximal phalanx of left thumb, Prakashi sustained five injuries and fracture of distill end of right second metacarpal by sharp object. Appellant Mahaveer sustained 2 injuries and appellant Chhitariya sustained 4 injuries vide injury report Ex. D-21A and fractures of head, shaft fourth right metacarpal and chip fracture distill end of second metacarpal. Kamlesh wife of Atar Singh sustained two external injuries.',
	(int) 69 => '<p>(ii) As per site plan Ex. D-10a incident occurred at the house of appellants therefore, the appellants had right of private defence of their person and property. The complainant party was the aggressor who came armed with weapons and caused injuries on the person of Prakashi and Kamlesh.',
	(int) 70 => '<p>(iii) Deceased Angoori diedat 8 PM on April 18, 1997 and the inquest memo was drawn prior to institution of FIR, therefore the FIR is hit by Section 162 Cr.P.C.',
	(int) 71 => '<p>(iv) Since no blood or pellets were found at the alleged place of occurrence, the prosecution story appears to be after thought.',
	(int) 72 => '<p>(v) There are material contradictions in the statements of witnesses regarding infliction of injuries. The FSL report also does not corroborate the prosecution story.',
	(int) 73 => '<p>7. In support of his submissions learned Counsel placed reliance on State of M.P. v. Mishrilal 2003 Cr.L.R. (SC) 425, wherein the Apex Court observed as under:',
	(int) 74 => '<p>there is no explanation about the injuries sustained by the three accused. None of the prosecution witnesses explained the injuries sustained by the accused. The injuries sustained by Mishrilal were dangerous to life. The prosecution witnesses consists of interested and inimical witnesses. We are, therefore, of the view that the prosecution has not presented the true version on most material part of the story. Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon. It is in these circumstances that non-explanation of the injuries sustained by the accused proved fatal to the prosecution case.',
	(int) 75 => '<p>8. Reliance is also placed on Hotam v. State of Rajasthan 2004(1) Cr.L.R. (Raj.) 467 : RLW 2004(2) Raj. 1352, wherein Division Bench of this Court observed as under:',
	(int) 76 => '<p>In order to determine whether the accused acted in exercise of the right of private defence of property and person it is absolutely necessary to find out who started the assault first. The law does not confer the right of self defence on a man who goes and seeks an attack on himself by his own threatened attack on another, an attack which was likely to end in the death of that other. The right of self defence confirmed by the law or preserved by the law for an individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstances fully justify trie exercise of such a right.',
	(int) 77 => '<p>9. In Buta Singh v. State of Punjab : 1991CriLJ1464 it was indicated that when two versions are before the Court, the version which is supported by the objective evidence cannot be brushed aside lightly unless it has been properly explained.',
	(int) 78 => '<p>10. In Vajrapu Sambayya Naidu v. State of A.P. : 2003CriLJ4433 , the Apex Court observed as under:',
	(int) 79 => '<p>But the facts of this case disclose that when they sought to exercise their right of private defence of property, they were attacked by the members of the prosecution party and three of them suffered incised wounds. The case of the defence in this regard appears to be probable and therefore, though initially the appellants had only the right of private defence of property, once the members of the prosecution party started an assault on them with sharp cutting weapons that gave rise to the right of private defence of person as well. Since in the circumstances, they must have apprehended that at least grievous injury may be caused to them, if not death, they were certainly entitled to use reasonable force to resist the members of the prosecution party and their right of private defence extended to causing death of any of the aggressors if that became necessary.',
	(int) 80 => '<p>11. Division Bench of this Court in Ramchandra v. State of Rajasthan 1981 RCC 88 held that the scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence.',
	(int) 81 => '<p>12. In Taransingh v. State of Rajasthan 1996(1) RCD 39 (Raj.) it was held that in a case of gunshot injuries if doubt as to place of occurrence and range of fire arises the accused were entitled to be acquitted.',
	(int) 82 => '<p>13. In Vijyan v. State : 1999CriLJ2037 the Apex Court observed as under:',
	(int) 83 => '<p>A poignant circumstance, which it is impossible to ignore, is the normal human reaction for the forenoon incident. If the father of the deceased was slapped, then the craving for vengeance would definitely have been on the injured party of the forenoon episode. When that circumstance is taken along with the other broad circumstances adverted to above, the case of the appellant that the deceased and PW-1 together with their henchmen had trespassed into the house of the appellant for a retaliatory onslaught, appears to be a probable story. Hence, we are disposed to believe the defence version that the deceased was the aggressor.',
	(int) 84 => '<p>14. In Gottipulla Venkata Siva Subbrayanam v. State of Andhra Pradesh AIR 1970 SC 1979 Hon'ble Supreme Court observed as under:',
	(int) 85 => '<p>That this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental excitement could not be better imagined than described, to weigh the position in golden scales.',
	(int) 86 => '<p>15. The facts in the back ground of which the question of right of private defence is to be considered may be summarised thus:',
	(int) 87 => '<p>(i) Deceased Angoori and injured witnesses were belaboured on the way between 8-9 PM on April 18, 1997 whereas FIR was lodged at Police Station Roopwas on April 19, 1997 at 1.30 PM i.e. after a delay of about 17 hours and this delay has not been explained.',
	(int) 88 => '<p>(ii) Accused appellant Mahaveer lodged FIR against the complainant party in regard to the incident occurred between 8-9 PM in the house of appellants at Police Station Roopwas at 1.35 AM. Accused appellants Atar Singh, Jal Singh, Mahaveer and Chhitariya sustained grievous injuries caused by blunt and sharp edged weapon Smt. Prakashi and Smt. Kamlesh w/o Atar Singh also sustained grievous injuries.',
	(int) 89 => '<p>(iii) No blood or pellets were found at the place of incident.',
	(int) 90 => '<p>(iv) In the written report (Ex. P-1) lodged by informant Nivori, Police Station Roopwas made endorsement that cross case bearing No. 128/97 in regard to said incident had already been registered.',
	(int) 91 => '<p>(v) Prosecution witnesses Kallo (PW-1) Mohan Singh (PW-3), Udai Singh (PW-4), Banwari (PW-5), Bhagwan (PW-6), Ranjeet (PW-7) and Kaila (PW-12) in their cross-examination deposed that they neither entered the house of complainant party nor caused injuries on the person of Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chhitariya. According to these witnesses Atar Singh, Kailashi, Kamlesh, Jal Singh, Mahaveer and Chittariya did not receive any injury in the incident.',
	(int) 92 => '<p>(vi) Ganpat Swaroop, 10, who was examined as court witness (CW-1) stated in his cross-examination that when he reached at the place of incident in the morning of April 19, 1997, he was told that the incident had occurred at two places but he did not draw the site plan of both the places.',
	(int) 93 => '<p>(vii) Charge-sheet in cross case bearing No. 128/97 under Sections 323, 324, 326 and 325 IPC was filed against the complainant party. In the site plan Ex. d-10A of the cross-case the incident occurred in the house of Chittariya and human blood was found at the place of incident.',
	(int) 94 => '<p>16. For the purpose of proper appreciation we have devised to categorize the submissions of learned Counsel in the following headings:',
	(int) 95 => '<p>(a) Cross case and non-explanation of injuries sustained by the accused.',
	(int) 96 => '<p>(b) Delay in lodging FIR.',
	(int) 97 => '<p>(c) Place of occurrence.',
	(int) 98 => '<p>(d) Right of private defence.',
	(int) 99 => '<p>CROSS CASE AND NON-EXPLANATION OF INJURIES SUSTAINED BY THE ACCUSED:',
	(int) 100 => '<p>17. Indisputably cross case bearing No. 128/97 was registered against thecom-plainant party as is evident from the endorsement made by the ASI Police Station Roopwas over the written report (Ex. P-1) lodged by informant Nivori (PW-2). It is also established that accused appellants had sustained injuries thus:',
	(int) 101 => '<p>(i) Atar Singh vide injury reports Ex. D-13A and Ex. D-14A, six injuries including chip fractures lower end of first proximal phalanx and. fourth and fifth ribs.',
	(int) 102 => '<p>(ii) Jal Singh vide injury reports Ex. D-15A and Ex. D-16A, six injuries including fractures of distill end of proximal phalanx of left thumb.',
	(int) 103 => '<p>(iii) Chittariya vide injury report Ex. D-21A, four injuries including fractures of head, shaft fourth right metacarpal and chip fracture distill end of second rnetacarpil.',
	(int) 104 => '<p>(iv) Accused Smt. Prakashi, five injuries including fracture of distill end of right second metacarpal by sharp object.',
	(int) 105 => '<p>(v) Accused Mahaveer and Smt. Kamlesh each sustained two injuries.',
	(int) 106 => '<p>18. The prosecution witnesses Kallo, Mohan Singh, udai Singh, Banwari, Bhag-wan, Ranjeet and Kaila shy away from the reality and do not explain the injuries caused to the accused in the course of the same incident. In Laxmi Singh v. State of Bihar : 1976CriLJ1736 , referring to earlier decision rendered in Mohar Rai's case : 1968CriLJ1479 the Apex Court indicated as under:.Where the prosecution fails to explain the injuries on the accused two results follow: (1) that the evidence of the prosecution witnesses is untrue, and (2) that the injuries probablies the plea taken by the appellants-.in a murder case, the non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:',
	(int) 107 => '<p>(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;',
	(int) 108 => '<p>(ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;',
	(int) 109 => '<p>(iii) that in case there is a defence version which explain the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of he prosecution to explain the injuries on the person of the accused assumes greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution one....',
	(int) 110 => '<p>However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it for outweighs the effect of the omission on the part of the prosecution to explain the injuries.',
	(int) 111 => '<p>19. In the instant case, the appellants sustained grievous injuries on the vital parts of the body, therefore, the act of prosecution witnesses in shying away from the reality and not explaining the injuries, is fatal to the prosecution case.',
	(int) 112 => '<p>DELAY IN LODGING FIR:',
	(int) 113 => '<p>20. The Courts have always viewed the first information with grave suspicion when there has been delay in giving it. Delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets benefit of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In the instant case possibility of introduction of coloured version cannot be ruled out in view of unexplained delay of 17 hours in lodging the FIR.',
	(int) 114 => '<p>PLACE OF OCCURRENCE:',
	(int) 115 => '<p>21. As already noticed the place of occurrence as per site plan was the way near 'Bandha' (dam). The prosecution witnesses supported the site plan and deposed that when they had scaled 'Bandha', they were belaboured by the appellants. Ganpat Swaroop IO (CW-1) however, stated that when he reached at the place of occurrence, he was told that the incident had occurred at two places but he only drew the site plan of one place. It is also established on record that no blood or pellets were found at the place of occurrence and as per site plan Ex. D-10A of the cross case the incident did occur in the house of appellant Chhitariya where human blood was also found. Since the prosecution witnesses have denied the presence of injuries on the person of the accused, we are of the view that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. The evidence of prosecution witnesses does not appear wholly true and the injuries sustained by the accused appellants probablies the plea taken by them. The defence version which explains the injuries on the person of the accused appellants, throw doubt on the prosecution case. From the facts and circumstances as adumbrated above, we are clearly of the view that the place of occurrence was deliberately changed by the complainant party and the incident did not occur at the place suggested by the prosecution.',
	(int) 116 => '<p>RIGHT OF PRIVATE DEFENCE:',
	(int) 117 => '<p>22. Right of private defence arises when the person has to face assailants who can reasonably be apprehended to cause grievous hurt to him. When an individual citizen is faced with a danger and immediate aid from the State machinery was not available, the individual citizen is entitled to protect himself and his property. But the force that a citizen is entitled to use must not be unduly disproportionate to the injury which has to be averted. The fight of private defence preserved by the law for the individual is a very narrow and circumscribed right and can be taken advantage of only when the circumstance fully justify the exercise of such a right. The scene and place of occurrence plays an important role for the decision of the case in respect of the adjudication about the right of private defence. It is no doubt true that appellant Atar Singh himself sustained fractures of ribs but those injuries were not caused by the deceased Angoori. Possibility of free fight between the complainant party and accused party cannot be ruled out. Since in the charge-sheet of the cross case against the complainant party allegations for committing house trespass or criminal trespass were not levelled, it appears hat both the parties freely fought together outside the house of appellant Chittariya. From the evidence of Ganpat Swaroop, IO (CW-1) we find that actual place of incident was deliberately withheld.',
	(int) 118 => '<p>23. Having closely scanned the evidence adduced at the trial we are of the opinion that right of private defence was available to all the four appellants but the appellant Atar Singh had far exceeded it by causing gunshot injuries on lungs, liver and abdomen of deceased Angoori and appellant Atar Singh therefore must be held guilty under Part I of Section 304 IPC.',
	(int) 119 => '<p>24. As a result of the above discussion we dispose of the instant appeal in the following terms:',
	(int) 120 => '<p>(i) We allow the appeal of appellants Jal Singh, Chhiuuiva and Mahaveer and set aside their conviction and sentence under Sections 302/149, 307, 307/149, 147, 148, 323 and 341 IPC and acquit them of the said charges. Appellants Chhilariya and Jal Singh are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mahaveer, who is in jail, shall be set all liberty forthwith, if not required to be detained in any other case.',
	(int) 121 => '<p>(ii) We partly allow the appeal of appellant Alar Singh and instead of Section 302, econvict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. We, however, acquit him of the charges under Sections 307, 147, 148, 323 and 341 IPC.',
	(int) 122 => '<p>(iii) Impugned judgment of learned trial Judge stands modified as indicated above.<p>',
	(int) 123 => '<p>'
)
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$i = (int) 123
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